The Peruvian government has published Legislative Decree 1092/2008, which introduces border control measures for the protection of copyrights, trade mark rights and related rights. This Decree, which is part of the implementation of the US-Peru Trade Promotion Agreement, will come into force on 1 January 2009 along with the Agreement itself. It defines pirated and counterfeit goods and makes provision for border control measures to be taken by the Peru Customs Administration against their importation -- personal belongings of travellers, inherently non-commercial imports and goods imported in very small quantities [source: José Barreda (Barreda Moller, Lima), writing in World Trademark Report].

Procompetencia -- Venezuela's National Antitrust and Unfair Competition Agency -- ruled on 21 May 2008 that well-known cosmetics company Grupo Transbel had engaged in unfair competition by running an advertising campaign that misled consumers into believing that there was a link between all goods bearing the mark EBEL and the city of Paris, thereby unfairly benefiting from the prestige of the French cosmetics and perfume industry.

Transbel had been using images of Paris in its advertising material, on its websites and in magazines. This, said Procompetencia, was unlawful, ordering that Transbel's 'Ebel Paris' campaign should be cancelled as being misleading and deceiving advertising. Transbel, who have lodged an appeal, was also ordered to pay a fine of approximately US$2.7 million [source: Mónica Granadillo, Estudio Antequera Parilli & Rodriguez, Caracas, writing in World Trademark Report].

Writing in Variety, Charles Newbery takes a look at the current state of the Argentine movie sector. Cinema attendances have fallen sharply in recent months in the wake of the economic downturn. In the first half of 2008 homegrown films grossed 5.8% of ticket sales, down from 9% in 2007 and 18% in 2000, while Hollywood held on to its 80%-85% share. But with the winter season on its way, there is some optimism that things will improve. Most keenly awaited is "High School Musical: el desafio" ('The Challenge'), a local version of Disney Channel's "High School Musical," which opened last on 150 screens. This movie is produced by Disney-backed Patagonik Film Group.

Another local movie with great marketing potential is "Valentina", distributed by Pachamama Cine. Targeted at 6-14 year old girls, "Valentina" is reported to be based on a brand of clothes, school products and toys that sells more than Hello Kitty and Barbie combined in Argentina, which bodes well for merchandising spin-offs.

In a decision of 16 April 2008 the Chilean Supreme Court rejected the application of Angel Custodio Cabrera to register the word trade mark IMAGINACION for "exhibition services for cultural and educative purposes; organization of sport competitions; conferences and congresses; education and training of medium-level technicians; teaching improvement and consultancy", all in Class 41. Correa & Correa Consultores, opposed, alleging a likelihood of confusion with their own earlier mark IMAGINACCION CORREA & CORREA CONSULTORES, for quite different services in Class 41: "organization services for cultural events provided through conventional means and through all communication channels, especially interactive communication through data, messages, text or a combination thereof, through computers, the Internet and other networks (oral and/or visual), fax and other analogue media (digital and/or satellite)".

The Industrial Property Department upheld the opposition insofar as it referred to "exhibition services for cultural and educative purposes; organization of sport competitions; conferences and congresses", but allowed registration of the mark for "education and training of medium-level technicians; teaching improvement and consultancy", holding that the services were sufficiently different from those covered by the earlier mark to avoid public confusion. After the Appeal Court for Industrial Property Matters affirmed the decision, Correa & Correa appealed to the Supreme Court, arguing that, since the services covered by the later mark fell within the same class as those covered by the earlier mark, the application should be rejected in its entirety. Surprisingly the court allowed Correa & Correa's appeal and rejected the application in respect of all services covered by the application. The court held that services within the same class should not be differentiated in order to reach a decision in opposition actions, as such differentiation was not allowed by the law.

In 2005 Chilean trade mark legislation was amended to provide that trade mark applications must specify not merely the class but also the goods and services for which registration was sought; it was later provided that, in opposition proceedings, a relationship had to be established between the goods and/or services covered by the respective marks, regardless of whether they fall within the same class. This decision appears to undermine this position [source: note by Sergio Amenábar (Estudio Federico Villaseca, Santiago), writing in World Trademark Report].

“This Monday, Anheuser Busch, producer of famous beer Budweiser, accepted an offer made by the Belgium-Brazilian company Inbev, finally acquiring it for the modest price of US$52 billion. However, Grupo Modelo (Corona) notified both parties of the reservation made in its contractual right regarding Anheuser Busch –- owner of 50.2% stock of the Mexican corporation -- to grant consent in the mega-merger operation between them. "We are confident that this agreement, governed by Mexican law, grants us the right to decide if we accept (or not) the possible acquisition of Anheuser Busch by InBev", disclosed the Mexican corporation in a news bulletin. The Executive President from InBev, Mr Carlos Brito, said that he doesn’t see a problem from Grupo Modelo for the purchase of Anheuser-Busch, but on the contrary, foresees a great alliance with the Mexican brewery.”

The World Intellectual Property Organization (WIPO) has announced that, on 30 June 2008, Costa Rica requested accession to the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, becoming the 69th member country.

Accession to this Treaty results from the obligations assumed by Costa Rica within the framework of the Intellectual Property chapter of the Free Trade Agreement with the United States of America. The Budapest Treaty allows patent applicants to comply easily with the microorganism deposit requirement established in some jurisdictions for patent applications, usually to meet the legal requirement of sufficiency of disclosure, given the practical impossibility of describing in full an invention involving a microorganism. In particular the Treaty establishes that Member Countries which allow or require the deposit of microorganisms within their patent application procedures must recognize and accept, for this purpose, the deposit made by the applicant before an International Deposit Authority (IDA) validated by WIPO. In this manner, with just one deposit before an IDA, the applicant is able to comply with the legal requirement, submitting a copy of the deposit receipt, without having to make independent deposits in each country of interest for a patent application. The Budapest Treaty will enter into force in Costa Rica on 30 September 2008.

Public Interest Intellectual Property Advisors, Inc. (PIIPA) is seeking assistance from a suitably-qualified volunteer to assist a Colombian Indian Shaman-healer from the Putumayo region of the Amazon in Colombia. According to PIIPA,

"In the 1970s-1980s, a U.S. university anthropologist recorded the sacred healing music of the assistance seeker. Assistance seeker's sacred music is currently being sold without his permission as CD recordings via the internet. The assistance seeker speaks Spanish, and, perhaps, English. The assistance seeker is affiliated with a nonprofit organization, and the subject matter advances the public interest in traditional knowledge and culture".

Two local papers -- Clarin and InfoBAE -- have carried reports that an unnamed seller of pirated DVDs, who was arrested in Argentina in May 2005 while selling 239 pirate discs in the street, has at last been sentenced the man to spend ten months in prison. The custodial sentence is explained by reference to him having earlier convictions (though not, it appears, for IP-related offences) [source: Fernando Cassia, The Inquirer]

New Health Supplies Regulations came into force in Mexico on 1 February 2008, changing the previous practice for obtaining safety approvals for medicaments and addressing difficulties under the previous practice in enforcing the data protection provisions of TRIPs and the North American Free Trade Agreement (NAFTA). The new Regulations delete from Mexican law the concept of the 'interchangeable generic medicament', which rise to the market for 'grey generics' -- generic versions of medicaments that were registered on the basis of questionable data rather than on the basis of propert bioequivalence tests. On 1 February the classification 'interchangeable generic' was replaced by three new classifications: 'generic medicament', 'reference medicament' and 'new molecule'.

Fox Business has reported that Meridian Co Ltd, a Canadian company engaged in the research, development, manufacturing, and sales of advanced medical devices, has signed an exclusive distribution contract with International Medical Systems to sell its Lapex 2000 LipoLaser in Latin America. Initially the deal will cover Brazil, Venezuela, Chile, Argentina, Uruguay, and Paraguay. In the second year the territory coverd by the ageement will also sove Central America, the Caribbean, Bolivia, Ecuador and Peru, with projected sales of over US$ 3 million, rising to $4 million in the third year. Juan C. Torres, president and co-founder of International Medical Systems,, says:

"We believe that our projections are relatively conservative as the Latin American market is ready for a completely non-invasive approach to spot fat reduction. This innovative technology combined with the current demand for less painful body contouring, presents a unique opportunity with clear advantages in the market."

"My 1963 edition of the Encyclopaedia Britannica says the following about Tropical Medicine: “Diseases of tropical climates reach their highest incidence and present the greatest problem where high temperatures and heavy rainfall prevail at all seasons. Such conditions favour the multiplication and longevity of man’s enemies and competitors – rodents, insect species that transmit disease, parasitic worms with free-living stages in the soil, and infective organisms that pass part of their lives outside the body of the host. The tropics also are characterized by the prevalence of diseases spread by filth and overcrowding, unsanitary habits and lack of sanitation marks of a low socioeconomic status. In this they reveal the characteristics of the so-called underdeveloped regions: low standard of living, illiteracy, high incidence of disease and short life expectancy, an unending cycle of proverty, ignorance and disease. In fact, the economist’s “underdeveloped areas” virtually coincide geographically with the tropics, suggesting a causal relationship between tropical environment and slow economic progress”.

I do not have the current Britannica but no doubt it is more politic in its choice of words. My 1963 set of the Britannica is bound in green Morocco with gilt edges and is very handsome but is silent about Tropical Law.

A possible definition of Tropical Law “is the branch of law that deals with clear legal provisions which are rarely, never, or sporadically employed, and other unusual legal problems that occur most often- but not uniquely in tropical regions”.Venezuela’s patent law appears to meet this definition of Tropical Law. Moises Naim a former Minister of the Venezuelan Government once quipped – after he left office - that in Venezuela it was necessary to put quotation marks on titles like “Minister of Justice”, “Minister of Communications” and “Minister of Defense”. The point for those who do not live in the tropics is that they should not assume that the patent or trade mark they file will provide the same protection as in their home country, or that they will not face peculiar problems in the prosecution or grant phases. Another problem is enforcement or the lack of effective enforcement in the Tropics.

Venezuelan Courts are extremely formalistic and do not examine the facts with much interest or attention The US Court of Appeals for the Third Circuit examined the procedures applied in Venezuelan Civil Courts, while considering whether to retain jurisdiction over an admiralty suit involving the collision of two U.S tankers in Venezuelan waters and concluded:

… the more important question is whether the relinquishment of jurisdiction would best serve the ends of justice… However, the relinquishment of jurisdiction could result in serious detriment to Mobil’s and Socony´s courses of action. It would relegate the libellants to a foreign forum in which the procedural remedies are far less conducive to the fair administration of justice than those available under our admiralty rules. The mode of trial, the lack of trial, the lack of adequate pre-trial procedures, and limitation on the manner in which expert testimony may be offered do not comport with our concepts of fairness”.

We cite the case to illustrate differences between US and Venezuelan court procedures, and to make the point that the legal remedies vary greatly from country to country.

Despite the fact Venezuela has had a patent law on the books for over 165 years, the author is not aware of any Venezuelan court decision that has ruled a Venezuelan patent is valid and enforceable. Thus Venezuela appears to be a country with a patent law but zero enforcement. Unenforced laws are one symptom of Tropical Law. One reason for the lack of enforcement is relatively few Venezuelan persons file patents and as there is no enforcement few if any Venezuelans have found inventing is a way to fame and fortune. Although Abraham Lincoln said “The patent system adds the fuel of self interest to the fire of genius” the lack of enforcement keeps the fuel of self interest separated from the fire of Venezuelan genius.

In the past they have been some utility in obtaining Venezuela patents. Procter and Gamble sued three infringers of P & G´s diaper patents. The cases were settled by the infringers withdrawing the diapers from the market but P & G was not able to obtain a judgment of infringement.

To further complicate matters it is useful to review the history and status of Venezuela’s current patent law. The last Venezuelan law governing patents that was approved by The Venezuelan Congress was the 1955 National Industrial Property Law. This law was, as are most Latin America’s IP laws, a combined patent and trademark law – that dealt with the difficult conceptual problem of granting property rights to immaterial intellectual property. The 1955 Act did not allow for pharmaceutical patents. Due to pressure from U.S pharmaceutical companies – Venezuela and the, other member countries of the Andean Pact – Peru, Bolivia, Colombia, Ecuador, and Venezuela all members of the Andean Pact decided to circumvent the messy job of passing legislation that would allow for pharmaceutical patents by issuing a Community Decision 85 (Never accepted by Venezuela) and subsequently Decision 486 the current law. The decisions of the Andean Pact had the force of treaties and as such they were supranational law.

However, Venezuela withdrew its membership in the Andean Pact leaving the ownership of patents and trademarks in an uncertain statu,s a clear example of Tropical Law, or perhaps common law. The Venezuelan PTO pretends that Decision 486 remains in effect. This may be the necessary use of Tropical Law since application of the still effective 1955 Act would create chaos. The figures on patents granted by Venezuela published by the British Government show that in 2003 one patent was granted and none in the next four years.

Perhaps AIPPI, AIPLA, PTMG, and other groups should work with Universities in the Tropics to prepare courses and course materials on the Patent System and the Public Domain to convince engineers in Tropical Law countries to invent and file patents. Jeremy Phillips once mentioned that in Scotland inventors are National heroes. This is a story that should be told in Tropical countries.

The Government of Venezuela is extremely hostile to patents. A visit to the PTO website provides a link to Aporrea, a group that has blogs hostile to the patent system, one of the blogs claims that patent’s are responsible for the deaths of millions of children.

The Venezuela Government describes itself as implementing the socialism of the 21st Century. Perhaps they should reflect that the patent system is the perfect marriage of the capitalist and socialist systems, capitalism for 18 years then the socialism of the public domain for eternity.

There are many other instances of Tropical Law that should be brought to the attention of the readers of this blog. Perhaps “Tropical Law” can be a feature in the future with contributions from all parts of the world".

Controversial international argicultural biotech business Monsanto Company reports that it has completed its acquisition of Marmot, S.A. Marmot operates Semillas Cristiani Burkard (SCB), a privately-held seed company based in Guatemala City. SCB is the leading Central American corn seed company focused on hybrid corn production. This acquisition is expected to build on Monsanto's corn business in Latin and Central America, enabling it to offer farmers in Central American countries broader access to corn seed products [Source: Trading Markets].

On 23 June 2008 the Brazilian National Health Surveillance Agency (ANVISA) issued Resolution RDC 45 on the approval process for patent applications for pharmaceutical products and processes. This resolution is made under Article 229-C of the Law 9.279/96 (Industrial Property Law), according to which all patent applications for pharmaceutical products and processes must have the approval of ANVISA.

Under Resolution RDC 45, applies to all pending patent application filed from 15 December 1999 onwards, the Brazilian Patent Office will send the patent application files to ANVISA in order to obtain official approval, which will state reasons for giving or denying its approval. ANVISA may ask the applicant to submit documents, objections, searches as well as the results of examination in other countries. additionally, interested third parties will be able to submit documents so as to support ANVISA’s examination during the proceeding.

If ANVISA’s preliminary report concludes that the patent cannot be allowed, or if the agency raises an office action, the patent applicant has 90 days receipt of its decision in which to respond. Failing such a response, the decision is final. There is also a 60- day term, following the date of publication of the decision in the Brazilian Official Gazette, in which the patent applicant may file an appeal against the decision

According to the authors of this information, this resolution in their opinion exceeds ANVISA’s competence, since the patentability examination falls within the competence of the Brazilian Patent Office. Accordingly the legality of this resolution may be subject to court proceedings[source: Di Blasi Parente, Vaz e Dias & Associados circular, 1 July 2008].